ABDIHAKIM ELMI v REX

The defence in section 31 of the Immigration and Asylum Act 1999 is available only to a person who is in fact a refugee within the Refugee Convention. A presumptive refugee may raise the defence at trial, but the jury must decide whether the person is a refugee. Humanitarian protection cannot be treated as equivalent for this statutory defence.

Where erroneous advice caused a guilty plea, an appellate court will quash the conviction only if the overlooked defence would quite probably have succeeded and a clear injustice resulted. A later immigration tribunal decision is relevant evidence, but is not determinative if it addresses a different period from that in issue at the criminal trial.

The appellant pleaded guilty at Isleworth Crown Court in 2010 to possessing a false identity document with intent, contrary to section 25(1) of the Identity Cards Act 2006. He had used a false Norwegian passport on arrival in the United Kingdom and claimed asylum at the airport.

He was not advised that he could rely on the section 31 defence. Later, the First-tier Tribunal accepted his account of past persecution and granted humanitarian protection, but refused asylum on the basis of the position in Somalia in 2013. On appeal against conviction, the central questions were the scope of section 31 and whether the defence would quite probably have succeeded in 2010.

1. Appeal allowed; conviction quashed. The appellant’s guilty plea resulted from erroneous advice which deprived him of the opportunity to raise the section 31 defence. The conviction was unsafe.

2. Section 31 applies only to refugees as defined by article 1A of the Refugee Convention. It cannot be construed to extend to persons granted humanitarian protection, despite similarities between the two forms of protection. A person who is a presumptive refugee may advance the defence at trial, but the jury must decide whether he is in fact a refugee.

3. Applying R v Boal [1992] QB 591, erroneous advice does not itself establish that a conviction is unsafe. The court must be satisfied that the defence would quite probably have succeeded and that a clear injustice has occurred. Although those inquiries are distinct, the court did not decide whether there could be a case in which a probably successful overlooked defence caused no clear injustice.

4. The later First-tier Tribunal decision was relevant, but did not resolve the question which a jury would have decided in 2010. Unlike a tribunal decision rejecting an account as incredible, or one establishing refugee status from entry, it did not determine the appellant’s refugee status at the time of the offence. Its finding that he was not a refugee in 2013 reflected later improvements in the security situation.

5. The appellant would probably have given the credible account later accepted by the tribunal. On the available evidence, and in the absence of evidence about conditions in Mogadishu in 2010, the jury would probably have been unable to be sure that he was not a refugee. The other section 31 requirements were not in practical dispute. The defence would therefore quite probably have succeeded, and the later tribunal decision did not cure the resulting injustice.

• Court of Appeal (Criminal Division): Allowed the appeal and quashed the conviction: [2022] EWCA Crim 1428.
• Isleworth Crown Court: On 7 September 2010, the appellant pleaded guilty to an offence under section 25(1) of the Identity Cards Act 2006 and was sentenced to 12 months’ imprisonment.